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Murchison v. Lyndon Property Ins. Co.12/30/2004
le and fair-minded jury could reach, noting that the plaintiff did not seek immediate treatment for her injuries, had suffered other injuries which could have caused her condition, and continued to work following her accident. Because ample evidence presented at trial supported the jury's verdict, the supreme court could not conclude the verdict was unreasonable, and held that the trial court erred in granting a JNOV. Id.
Similarly, in Kennedy v. Thomas, 34,530 (La.App. 2 Cir. 4/4/01), 784 So.2d 692, two physicians gave contradictory testimony about the necessity and cost of future surgeries, and also had different opinions about the permanence of impairment caused by the injuries. The jury rendered a more conservative award than desired, and the plaintiffs moved for JNOV. The appellate court found that the facts and evidence presented by the defendant were "of such quality and weight that reasonable men in the exercise of impartial judgment could reach different conclusions." Id. at 698-99. Thus, the jury must weigh the evidence, including testimony of expert witnesses, to assess the extent of damages caused by the injury which the plaintiff may recover.
In general, the testimony of the primary treating physician enjoys greater weight than an independent examiner who has seen the patient only for limited purposes of assessing their condition. McKinney v. Coleman, 36,958 (La.App. 2 Cir. 3/14/03), 839 So.2d 1240. The opinion of the treating physician, however, is not irrebuttable. The medical evidence must be weighed to determine "whether, based on the totality of the record, the jury was manifestly erroneous in accepting the expert testimony presented by defendants over that presented by plaintiff." Miller v. Clout, 03-91 (La. 10/21/03), 857 So.2d 458 (citing Freeman v. Rew, 557 So.2d 748 (La.App. 2 Cir. 1990)). Thus, the trier of fact is entitled to place more weight on the testimony of a physician other than the treating physician if that physician's evidence is corroborated. In this case, the plaintiff and his treating physician presented the jury with evidence of his painful physical condition, the effects of the herniated disk, and the complications caused by the herniated disk. His treating physician could not, however, state with any degree of medical confidence that Mr. Murchison's initial injuries from the September 1998 car accident caused the herniated disk. In fact, Dr. Bernauer himself admitted that this was a new finding. In contrast, defendants' expert witness testified that the herniated disk could not have been caused by the initial injury . Dr. Perry reasoned that it was not possible that the car accident caused injuries which did not appear on Mr. Murchison's MRI in October 1999, approximately a year after the accident, but which did appear on his March 2002 MRI. He concluded that, given this extended time frame, the change that caused the herniated disk would have had to occur sometime after the October 1999 MRI. Other evidence in the record further corroborate conclusions. For instance, Mr. Murchison was able to maintain employment, and did not seek medical attention between January 26, 2000 and February 27, 2002. Additionally, Mr. Murchison suffered other injuries between the time of his car accident and the time he was diagnosed with a herniated disk. For example, Mr. Murchison returned to his chiropractor in August of 1999 after hurting his back doing maintenance work on his mother's home.
Given this imbalanced testimony, the jury was reasonable in concluding that the timeline of Mr. Murchison's injuries prevented a finding that the September 1998 accident caused his herniated disk. The jury made a decision about the relative strength of the evidence. Because the
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